Thursday, March 28, 2013

In the last two days the eyes of the country have focused on
the Supreme Court as history was in the making.
In back-to-back court cases heard by the Court dealt with the issue of
gay marriage. One about a state’s right
to define marriage as one man and one woman and the other was whether the
Federal Government can do the same for the purpose of law and policy.

There are legal issues of standing with the court on who is
arguing the points. Both California in
the Prop 8 cases and the US Justice Department in the DOMA case have opted out
of arguing it. I will leave that for
legal scholars to discuss, I want to talk about this on the issues and the real
life implications.

First the California case.
California is a state the often uses referenda to decide all kinds of
policy. When a law banning gay marriage
was overturned the state turned to a state constitutional amendment to set it
in law. The 9th circuit
called the amendment a violation of the US constitution and so the Supreme
Court was the only other option for the anti-gay marriage crowd. Basically the question facing the court is
can California amend their constitution to define marriage as between one man
and one woman? The court could decide
with a narrow, a broad or no result. No
one knows how they are going rule. But
there are questions we can ask in dealing with this. For example, there is a class of evangelical
Christians who go on television and preach that sending money to hem will bring
about God’s grace. Often preaching not
only from theological positions but political ones, they tend they get
headlines and are seen as speaking for evangelical churches. What if mainline evangelicals rallied others
to outlaw broadcasts in a state? When
found to be unconstitutional under the state constitution there is an amendment
to that state’s constitution that allow banning broadcasts of these
churches. The question could be seen as
a 1st amendment issue, both free speech and religion. So the US Supreme Court would be the only
place to find resolution. Thus we have
the same situation with gay marriage.
This idea that states can make certain marriages second class is a
constitutional issue. Since marriage is
attached to many many rights and privileges in this country that are defined by
law there is a real equal protection issue at play. I think we have to be careful when certain
rights can be voted away by ballot initiatives.
I wish the court would put the hammer down here on such things. Making the banning of gay marriage
unconstitutional will never force
churches and other houses of worship or their clergy from performing weddings
they deem inappropriate (just as today) since religious marriage is not at play
here. Clergy and faith communities today
deny certain types of marriage all the time.
No one can sue a synagogue for not marrying non-members, non-Jews or
insincere couples. Or they could but
they would lose bad. The court has a
chance to do big things, or they could let it be, but if they do that, in
California Prop 8 would be considered unconstitutional by the 9th
circuit’s ruling. So at least the people
of California will have the freedom they seek.

DOMA, the 1996 Defense of Marriage Act was a bad decision
when it was enacted. It was basically an
attempt by the Federal Government to stop it from having to recognize gay
marriages even though no state had been making them legal. In real world application, the case looks at
a legal married woman who lost her partner of 40 years had to pay more than
$300,000 in taxes that would have not occurred if their marriage was recognized
by the Federal government. But this is
just one example of what DOMA does to families and is worse today as 10 states
with more to come will create legal marriage for gays and lesbians. One group that weighed in was the US
military. Recently the lift of the ban
of gays in the military (there have always been gay people in the military they
can just serve openly now) means that married gay people are in war zones. When a warrior dies there is a mechanism to
help the family, starting with notification by the military. Married gays do not get this benefit since
the military has to follow this law that forbids them from recognizing gay
people as married. Seriously, everyone
knows it but can’t formally recognize the marriage. Think about that for one minute, your country
has a law that stops a dead hero’s family from getting benefits including the
simple formal notification. How is that
not as heartless as Westboro Baptist Church?
But what is more there are tax benefits to getting married that go
unrecognized by the US for legally married couples, but on new year’s eve a man
could meet a woman at Spearmint Rhino at 8pm, drive to a drive-through chapel
off the strip where a man dressed like a Klingon officiates a ceremony without
you leaving the car, (the organist a Ferengi) and be married by midnight. Even if they divorce by January 2nd,
they can file taxes jointly for the previous year. How do two loving people being married
destroy what some call traditional marriage (the argument that led to DOMA) and
this kind of Vegas marriage doesn’t? I
don’t know.

We are living in interesting times. I think by the time I have grandchildren gay
marriage will be seen as normal. But
right now we have to have these silly arguments. Thankfully we are seeing conservative leaders
seeing this issue as one of rights for all.
We move forward slowly but we are moving forward. The irony is not lost on me that this is the
week of Passover. This year we are still
slaves, perhaps next year we will be free.